Tbe order appealed from, made April 17, 1886, required tbe appellant to file with tbe clerk of tbe General Term, and to serve on tbe respondent’s attorney, tbe copies of the printed case required by tbe rules on or before tbe 23d day of April, 1886, and upon bis failure so to do provided that tbe stay, created by the undertaking given upon tbe appeal and duly approved and filed, should cease. The next term of the General Term of tbe First Department was appointed for May 8, 1886. Ry Rules 40 and 41 tbe appellant bad till April twenty-fourth, or eight days before tbe term, in which to file and serve tbe papers. Tbe Special Term could not deprive the appellant of tbe right given him by tbe rules. (Code of Civ. Pro., § 17; Batter shall v. Davis, 23 How., 383.)
Such shortening of tbe appellant’s time was not necessary to protect tbe respondent, since if tbe former failed to serve the papers within the time required by tbe rules, tbe latter could move on *558short notice to dismiss the appeal. (General Rule 41; 3d General Term Rules, First Dept., adopted Jan. 4, 1878.) The stay created by giving a proper undertaking on appeal to the General Term was-given by the Code, and was beyond the power of the Special Term to terminate. (Code of Civ. Pro., § 1352.)
The order appealed from should be reversed, with usual costs and disbursements.
Beady, P. J., and DaNiels, J., concurredOrder reversed, with ten dollars costs and disbursements.